DoD to issue new civil liberties guidance

Most federal agencies have had well-established programs to deal with privacy concerns since the 1970s, when the Privacy Act was first passed. But in 2007, Congress told eight of those agencies to also set up civil liberties programs when it implemented some of the recommendations of the 9/11 Commission.

In the Defense Department, Michael Reheuser, director of the Defense Privacy and Civil Liberties Office (DPCLO), wears both hats. His office is in charge of maintaining DoD's compliance with the Privacy Act, which has been largely unchanged since 1974. The department's implementation of the civil liberties legislation is still a work in progress, but within 30 days, all of DoD's components will be given guidance designed to ensure that civil liberties are taken seriously at every level of the department.

"The most important thing, we think, is there has to be a person in the organization that is responsible for the civil liberties program. And that person has to be senior enough to affect change in the organization," Reheuser said during an interview for Federal News Radio's On DoD. "So we have asked that the person either be a general or admiral if they're uniformed person, or a senior executive if they're a civilian. If my assessment of complaints is that we have a problem related to some issue, I need to be able to go to that person and say to her or him, 'this is a problem in your component,' and that person would be in a position to change that policy."

Reheuser said his office has spent the past year or so training and educating leaders throughout DoD to create civil liberties programs in their own Defense components. The training includes how to define civil liberties, how to identify and investigate violations and how to respond.

Rather than setting up a new enforcement regime for civil liberties, DoD will rely on its existing inspectors general and other internal investigative organizations to look into claims of civil liberties violations. Complaints, can be, and are made by both DoD's own workforce and members and members of the public.

"Most of the complaints we receive relate to either the First Amendment or the Fourth Amendment," Reheuser said. "People will complain that their commander came into their barracks room and did an inspection he wasn't allowed to do. Or freedom of speech issues might relate to antiwar activity, but each one of these cases has their own facts."

In addition to setting policy on privacy and civil liberties, the DPCLO has oversight of all DoD directives and other issuances to ensure they comply with legal requirements. It also looks for potentially problematic patterns of complaints across the Defense Department and submits quarterly reports to Congress on civil liberties complaints within DoD.

"What we're looking at is whether there are patterns that are emerging across the department that we need to train to," Reheuser said. "For example, are we finding a particular kind of religious discrimination that's not isolated to one component to another, but it's across the department? Have we had a lot of complaints about Don't Ask Don't Tell? Have we had a lot of complaints about freedom of speech issues? To date, we're gathering this information, and we're assessing it to see what we need to train on across the department."

DPCLO also has a hand in forming DoD's policies toward social media. While Reheuser said DoD's official use of platforms like Facebook and Twitter has done a good job in complying with privacy and civil liberties concerns, the department is struggling to find the balance between freedom of speech interests and operational security when social media is used privately by individual servicemembers.

"I think there are certain guidelines that could be put out to help, but it really does come down to the individual discretion of the commander," he said. "We haven't fully developed those guidelines as a department, but the implementation and the assessment of them is really going to have to be on a case-by-case basis."